2. Obligations to the Court Flashcards
Duty to Court - Overview
What is the summary overview for the duties owed by an advocate or solicitor to the Court?
Law Society of Jersey Code of Practice 2017
(A) Independence R.3.1: duty to:
- act with independence
- in interests of justice
(B) Paramount duty R.3.1: overrides any inconsistent obligations (only this rule has primacy over other rules)
(C) Exception - R.3.1: other than under criminal law and confidentiality:
- conflict between not mislead Crt & client confidentiality: duty not to mislead is paramount, even if acting against client’s interests - re Advocate (1978) and Takilla Ltd v OBD (2004)
- important - access to justice to resolve disputes: Crt’s key function to deliver justice
(D) I_ndependence specific duties- R.3.1 (a) - (e)_: members must:
a. not mislead - & R.3.4: not (a) knowingly or recklessly (b) attempt or (c) permit to mislead Crt
b. not abuse role - & R.3.5: not abuse role as advocate
c. avoid wasting time: take reasonable steps avoid wasting court’s time
d. relevant authorities - decisions & statute: take reasonable steps ensure court has all relevant decisions and statutory provisions, and
e. no compromise indepence: ensure ability to act independently not compromised
(E) Relevant decisions & statute - specific independence duty - R.3.1(d):
-
Reasonable steps court has before it all:
a. relevant decisions and
b. statutory provisions - Duty to advance client’s case
- Unfavourable relevant authority: if you find relevant authorit_y, even if unfavourable_ client’s case, duty to draw to Crt’s attention, duty owed to Crt, not opponent - Organic Kids Ltd and Organic Kids (Castle Quay) Ltd v Minister for Education Sport and Culture (2014)
(F) Competing duties - R.3.2: crt duty overrides client duty to act:
a. in best interests of client - R.3.2
b. with honesty, integrity, and independence - R.4.1
Note:
a. reason: not just relevant to parties to litigation but legal system as whole
b. other rules supplement
(G) Confidentiality exception: R.3.3 - duty to court not require member to breach of duty to keep affairs of each client confidential
(H) Not mislead R.3.4:
-
Not mislead Crt - R.3.1(a): not:
a. knowingly or recklessly mislead
b. attempt to mislead
c. permit to be misled
AG v Sinel and Chiddicks (2015)
-
Not mislead specific obligations - R.3.4(a) - (e): not do the following if know or instructed untrue or misleading or not hold authority or consent
a. Submission: make submissions, representations or statement
b. Documents: register, file, lodge documents with Crt, JGreffe or Viscount
c. Questioning/facts: ask questions which suggest facts to witnesses
d. Witness/evidence: give evidence or put affidavits or witness statements to crt, unless make clear to true position as known or instructed; or
e. Defence/facts: invent defence or suggest to client witness words to distort facts - Truthfulness and trust: is core of relationship between advocate and Crt, otherwise process of justice undermined - AG v Michel (2011)
(I) False defence/untrue facts - not mislead specific obligation- R.3.4(e): must not:
- defences: invent defences for client
- facts: assert to court facts matters knows to be untrue
-
W’s evidence: put words into mouth of witness to distort witness’s evidence
a. duty owed to crt - No duty of care to opponent in litigation: opponent cannot bring claim against advocate based on alleged breach of Jersey Code - Optical Services (Jersey) Ltd v. Carey Olsen (2014)
(J) Not abusing role as advocate - R.3.5: not:
(a) statements or questions to witness/other person: make statements or ask questions:
1. merely insult, humiliate or annoy witness or other person; or
2. exploit or attempt to exploit vulnerability of witness or other person;
(b) serious allegation against witness: make whom cross-examined unless witness has chance to answer allegation in cross-examination;
(c) serious allegation against person: make or suggest person guilty of crime charged unless:
i) reasonable grounds for allegation; and
ii) allegation relevant to client’s case or witness’ credibility; and
iii) avoid naming third party concerning allegation in court unless reasonably necessary. or
(d) personal opinion of facts/law: put forward to crt unless invited or required by court or law
(K) Not be both advocate and witness - conflicts of interest
1. Clear/probable called witness - G.6.20: not act at trial or in litigation if clear or probable advocate (or person in firm) called witness unless not prejudicing:
a. independence as advocate/employee
b. interests of client or
c. interests of justice
2. Factors - G.6.20:
a. evidence nature: importance, formal or contested; or
b. conflict of interest: likely - member/firm & client; and
c. effect on client: if stop acting
3. Reasons:
(a) practical reason - credibility with Crt: maintain this to advance client’s contentions from strong and non-emotional position
(b) philosophical reason - crt officer: primary motive to achieve justice and crt must trust advocate’s submissions to law when considering facts
4. Cases:
a. where 1 and same person: Hirschfield v Sinel (1999)
b. firm act, partner witness: advocate employed by firm in litigation and a partner called as witness - Takilla Limited v Olsen (2004)
c. advocate litigant in person: avoid blurring distinction between advocate and litigant in person - Takilla Limited v Olsen (2004)
d. question of law/evidence purely formal - exception: if sued, firm/lawyer must be separately represented and not represent it/himself, unless only question of pure law or evidence purely formal - Optical Services (Jersey) Ltd v Carey Olsen (2015)
Duty to Court - Paramount duty
What is the paramount duty owed by an advocate or solicitor to the Court?
(A) Independence - R.3.1: duty to:
- act with independence
- in interests of justice
(B) Paramount duty: overrides any inconsistent obligations
Note: only this rule has primacy over other rules
Full text:
Law Society Code of Conduct 2017
Rule 3.1 - Duty to act with independence in the interests of justice
Members owe a duty to the court to act with independence in the interests of justice.
This duty overrides any inconsistent obligations which they may have (other than obligations under the criminal law and confidentiality).
It includes the following specific obligations which apply whether they are acting as an advocate or are otherwise involved in the conduct of litigation in whatever rôle (with the exception of R.3.1 a), which applies when acting as an advocate before any court or tribunal).
For the purpose of this Rule, references to advocate shall mean any member fulfilling the role of an advocate irrespective of whether they are an Advocate or Solicitor.
Members must:
a) not knowingly or recklessly mislead or attempt to mislead the court or permit the court to be misled (R.3.4 applies);
b) not abuse their role as an advocate (R.3.5 applies);
c) take reasonable steps to avoid wasting the court’s time;
d) take reasonable steps to ensure that the court has before it all relevant decisions and statutory provisions; and
(e) ensure that their ability to act independently is not compromised.
Duty to Court - Exception
Is there any exception to this paramount duty owed by an advocate or solicitor to the Court?
Exception - R.3.1: other than under criminal law and confidentiality:
- conflict - mislead & confidentiality: conflict between duty not to mislead Crt and client confidentiality, duty not to mislead court is paramount, even if involving acting against client’s interests - re Advocate (1978) and Takilla Ltd v OBD (2004)
-
access to justice for purposes of resolving disputes: Crt’s key function to deliver justice
(a) duty to crt overrides:
i. best interests duty to client R.3.1 (best interests)
ii. honesty, integrity, and independence duty to client R.4.16
(b) reason: not just relevant to parties to litigation, but legal system as whole
(c) other rules supplement
Full text:
Law Society Code of Conduct 2017
Rule 3.1 - Duty to act with independence in the interests of justice
Members owe a duty to the court to act with independence in the interests of justice.
This duty overrides any inconsistent obligations which they may have (other than obligations under the criminal law and confidentiality).
It includes the following specific obligations which apply whether they are acting as an advocate or are otherwise involved in the conduct of litigation in whatever rôle (with the exception of R.3.1 a), which applies when acting as an advocate before any court or tribunal).
For the purpose of this Rule, references to advocate shall mean any member fulfilling the role of an advocate irrespective of whether they are an Advocate or Solicitor.
Members must:
a) not knowingly or recklessly mislead or attempt to mislead the court or permit the court to be misled (R.3.4 applies);
b) not abuse their role as an advocate (R.3.5 applies);
c) take reasonable steps to avoid wasting the court’s time;
d) take reasonable steps to ensure that the court has before it all relevant decisions and statutory provisions; and
(e) ensure that their ability to act independently is not compromised.
Duty to Court - Specific independence duties
What are the specific duties owed by an advocate or solicitor to the Court?
Specific duties: members must:
-
Not mislead: not:
a. knowingly or recklessly mislead Crt or
b. attempt to mislead Crt
- R.3.1 (a) & R.3.4 (not mislead) applies - Not abuse role: not abuse their role as an advocate (R.3.5 applies)
- Avoid wasting time: take reasonable steps to avoid wasting court’s time;
- Relevant decisions & statute: take reasonable steps to ensure court has before it all relevant decisions and statutory provisions; and
- Not compromise indepence: ensure that their ability to act independently is not compromised
Full text:
Law Society Code of Conduct 2017
Rule 3.1 - Duty to act with independence in the interests of justice
Members owe a duty to the court to act with independence in the interests of justice.
This duty overrides any inconsistent obligations which they may have (other than obligations under the criminal law and confidentiality).
It includes the following specific obligations which apply whether they are acting as an advocate or are otherwise involved in the conduct of litigation in whatever rôle (with the exception of R.3.1 a), which applies when acting as an advocate before any court or tribunal).
For the purpose of this Rule, references to advocate shall mean any member fulfilling the role of an advocate irrespective of whether they are an Advocate or Solicitor.
Members must:
a) not knowingly or recklessly mislead or attempt to mislead the court or permit the court to be misled (R.3.4 applies);
b) not abuse their role as an advocate (R.3.5 applies);
c) take reasonable steps to avoid wasting the court’s time;
d) take reasonable steps to ensure that the court has before it all relevant decisions and statutory provisions; and
(e) ensure that their ability to act independently is not compromised.
Duty to Court - Relevant authorities - specific independence duty
Is there a duty to put forward authorities which are not favourable to your case?
Specific duties
(A) Relevant decisions & statute - R.3.1(d):
- Reasonable steps: take reasonable steps to ensure
-
Before court: court has before it all
a. relevant decisions and
b. statutory provisions
(B) Duty to advance client’s case
(C) Unfavourable relevant authority:
if you find a relevant authority, even if unfavourable client’s case, duty to draw to Crt’s attention, duty owed to Crt, not opponent - Organic Kids Ltd and Organic Kids (Castle Quay) Ltd v Minister for Education Sport and Culture (2015)
Full text:
Law Society Code of Conduct 2017
Rule 3.1 - Duty to act with independence in the interests of justice
Members owe a duty to the court to act with independence in the interests of justice.
This duty overrides any inconsistent obligations which they may have (other than obligations under the criminal law and confidentiality).
It includes the following specific obligations which apply whether they are acting as an advocate or are otherwise involved in the conduct of litigation in whatever rôle (with the exception of R.3.1 a), which applies when acting as an advocate before any court or tribunal).
For the purpose of this Rule, references to advocate shall mean any member fulfilling the role of an advocate irrespective of whether they are an Advocate or Solicitor.
Members must:
a) not knowingly or recklessly mislead or attempt to mislead the court or permit the court to be misled (R.3.4 applies);
b) not abuse their role as an advocate (R.3.5 applies);
c) take reasonable steps to avoid wasting the court’s time;
d) take reasonable steps to ensure that the court has before it all relevant decisions and statutory provisions; and
(e) ensure that their ability to act independently is not compromised.
Duty to Court - Competing Duties
Does the duty to the court override all duty to act in best interests of client?
Duty to crt overrides, duty to act in best interest of each client - R.3.2
Duty to Court - Confidentiality duty
What about the duty of confidentiality owed to the client?
Duty owed to crt does not require you to act in breach of duty of confidentiality owed to client - R.3.3
Duty to Court - Not to Mislead
What does the member’s duty not to mislead the court involve?
-
Not mislead Crt: not:
a. knowingly or recklessly mislead or
b. attempt to mislead
c. permit to be misled
- R.3.1 (a) & R.3.4 (not mislead) applies and AG v Sinel and Chiddicks (2015) - Truthfulness and trust: is core of relationship between advocate and Crt, otherwise process of justice undermined - AG v Michel (2011)
Full text:
Jersey Codes of Practice 2017
R.3.4 - Not misleading the court
A member’s duty not to knowingly or recklessly mislead or attempt to mislead the court or to permit the court to be misled will include the following obligations:
Members must not:
a) make submissions, representations or any other statement, or
b) register, file or otherwise lodge any documents with the court, Judicial Greffe or Viscount,
that they know, or are instructed, are untrue or misleading, or, in respect of which, they do not hold the requisite authority or consent;
c) ask questions which suggest facts to witnesses that they know, or are instructed, are untrue or misleading;
d) call witnesses to give evidence or put affidavits or witness statements to the court which they know, or are instructed, are untrue or misleading, unless they make clear to the court the true position as known by or instructed to them; or
e) invent a defence for a client or suggest to the client or to a witness the use of words in evidence which would distort the facts.
Duty to Court - Not mislead specific duties - What specific duties are there in relation to the member’s duty not to mislead the court?
Specific obligations - R.3.4(a) - (e): not doing the following if know or instructed untrue or misleading or not hold authority or consent;
- Submission: make submissions, representations or statement
- Documents: register, file, lodge documents with Crt, JGreffe or Viscount
- Questioning/facts: ask questions which suggest facts to witnesses
- Witness/evidence: give evidence or put affidavits or witness statements to crt, unless make clear to true position as known or instructed; or
- Defence/facts: invent defence or suggest to client witness words to distort facts
Full text:
Jersey Codes of Practice 2017
R.3.4 - Not misleading the court
A member’s duty not to knowingly or recklessly mislead or attempt to mislead the court or to permit the court to be misled will include the following obligations:
Members must not:
a) make submissions, representations or any other statement, or
b) register, file or otherwise lodge any documents with the court, Judicial Greffe or Viscount,
that they know, or are instructed, are untrue or misleading, or, in respect of which, they do not hold the requisite authority or consent;
c) ask questions which suggest facts to witnesses that they know, or are instructed, are untrue or misleading;
d) call witnesses to give evidence or put affidavits or witness statements to the court which they know, or are instructed, are untrue or misleading, unless they make clear to the court the true position as known by or instructed to them; or
e) invent a defence for a client or suggest to the client or to a witness the use of words in evidence which would distort the facts.
Duty to Court - Not mislead specific obligations - what must an advocate not do concerning the duty not to mislead in relation to defences, facts and evidence?
Specific not misleading duty
Untrue facts, defences or evidence: must not:
- facts: assert to court as facts any matters knows to be untrue
- defences: invent defences for client or
- W’s evidence: put words into mouth of witness to distort witness’s evidence
- Duty owed to crt
- No duty of care to opponent in litigation: opponent cannot bring claim against advocate based on alleged breach of Jersey Code - Optical Services (Jersey) Ltd v. Carey Olsen (2014)
Duty to Court - Not abuse role - what must an advocate not do concerning the duty not to abuse its role?
Not abusing role as advocate - R.3.5: advocate’s obligation not:
(a) statements or questions to witness/other person: make statements or ask questions:
1. merely insult, humiliate or annoy witness or other person; or
2. exploit or attempt to exploit vulnerability of witness or other person;
(b) serious allegation against witness: make serious allegation against witness whom cross-examined unless given witness chance to answer allegation in cross-examination;
(c) serious allegation against person: make serious allegation against person or suggest person guilty of crime which their client charged unless:
i) reasonable grounds for the allegation; and
ii) allegation relevant to client’s case or witness’ credibility; and
iii) avoid naming third party concerning allegation in open court unless reasonably necessary. or
(d) personal opinion of facts/law: put forward to court of personal opinion of facts or law unless invited or required to do so by court or law
Full text:
Jersey Codes of Practice 2017
R.3.5 - Not abusing their role as an advocate
Where a member is acting as an advocate, their duty not to abuse their role includes the following obligations:
Members must not:
a) make statements or ask questions merely to insult, humiliate or annoy a witness or any other person or which exploit, or attempt to exploit, the vulnerability of a witness or any other person;
b) make a serious allegation against a witness whom they have had an opportunity to cross-examine unless they have given that witness a chance to answer the allegation in cross-examination;
c) make a serious allegation against any person, or suggest that a person is guilty of a crime with which their client is charged unless:
i) they have reasonable grounds for the allegation; and
ii) the allegation is relevant to their client’s case or the credibility of a witness; and
iii) where the allegation relates to a third party, they avoid naming them in open court unless this is reasonably necessary. or
d) put forward to the court a personal opinion of the facts or the law unless they are invited or required to do so by the court or by law.
Duty to Court - Advocate/Witness - can an advocate act or be involved in litigation and also act (or an employee or partner of the firm) be a witness?
Conflicts of interest - Guidance
G.6.20 - advocate not as witness: not act as advocate at trial or in litigation if clear or probable advocate (or or anyone in firm) called as witness unless not prejudice:
- independence as advocate/employee
- interests of client or
- interests of justice
Factors include:
a. evidence nature: importance and formal or contested; or
b. conflict of interest: likely as to member/firm & client; and
c. effect on client: if stop acting
Full text:
Jersey Codes of Practice 2017
Conflicts of interest - Guidance
G.6.20
A member must not appear as an advocate at a trial or otherwise act in the litigation if it is clear or probable that the member, or anyone within their firm, will be called as a witness, unless they are satisfied that this will not prejudice the member’s independence as an advocate (or that of the employee) or the interests of their client or the interests of justice. The factors to consider include:
a. the nature of the evidence, its importance to the case and whether it is purely formal or likely to be contested; or
b. whether there is likely to be a conflict of interest between the member or their firm and the client; and
c. the effect on the client if, having already accepted instructions to act, the member (or employee) has to stop acting.
Duty to Court - Advocate/Witness - what are the reasons why an advocate cannot be involved in the litigation and be called as a witness?
(a) practical reason - credibility with Crt: maintain this to advance client’s contentions from strong and non-emotional position
(b) philosophical reason - crt officer: primary motivation to achieve justice and crt must trust advocate’s submissions to law when considering facts
Duty to Court - Advocate/Witness - what other principles apply to the rule an advocate cannot be involved in the litigation and be called as a witness?
1. Rule - not be both advocate and witness applies:
(a) where 1 and same person: Hirschfield v Sinel (1999)
(b) firm act, partner witness: advocate employed by firm in litigation and a partner called as witness - Takilla Limited v Olsen (2004)
(c) advocate litigant in person: avoid blurring distinction between advocate and litigant in person - Takilla Limited v Olsen (2004)
2. Question of law/evidence purely formal - exception: if sued, firm/lawyer must be separately represented and not represent it/himself, unless only issue is question of pure law or evidence purely formal - - Optical Services (Jersey) Ltd v Carey Olsen and others (2015)
